New recusal procedures recommended

A new report by the defense bar in the U.S. warns that judicial independence and integrity are threatened by court funding cuts and the increasing flow of money into judicial elections. It was reported that almost half of state courts are now operating under hiring freezes, while others, including Alabama, have cut staff pay, implemented judicial furloughs and cut courthouse hours. The report, “Without Fear or Favor in 2011,” comes from the Judicial Task Force of DRI—The Voice of the Defense Bar. In addition to discussing budget cuts across the country affecting the judiciary, the report also addresses campaign funding issues for judges.

The report decries the influence resulting from the sums of money going into judicial elections. The U.S. Supreme Court’s 2010 decision in Citizens United case, striking down restrictions on corporate campaign spending, has played a major role. Campaign contributions in 2010 state Supreme Court retention elections reached all-time highs, creating the appearance of “a judiciary indebted to campaign contributors, who include attorneys and parties likely to appear before the winning candidate,” according to DRI.

Increased judicial campaign spending has also pushed advertising to new heights, the report notes. In 2008, a record of nearly $20 million was spent on television ads in races for 26 state Supreme Court seats. There is great concern over the use of attack ads. These ads, which often are virtually impossible to trace to the real funding source, work against judicial independence. The public’s perception of our judicial system is swayed in a negative manner because of how these ads focus on the outcome of controversial decisions, even though the law was followed by the judges being attacked. The DRI report includes several recommended solutions that call for:

Required disclosure of those who fund third-party attack ads against judges.

Automatic disqualification of judges who receive campaign contributions above a specific threshold from a party or lawyer appearing before the judge.

Creation of an independent group or panel of judges at each level of the state’s court system to hear and decide disqualification motions.

Expanded use of nonpartisan judicial performance evaluations to provide information to voters in the 39 states that elect at least some of their judges. The evaluations, now used in 21 states, can also help judges improve and are helpful even in states where judges are appointed, according to the report. The commissions that perform the evaluations should be made up of both lawyers and non-lawyers; should strive for racial, political and gender balance; and should approach their work in a politically-neutral manner.

It’s good to see that an issue that has flown largely under the radar screen of public opinion being brought to light. Hopefully, both Congress and state legislative bodies will pass some meaningful campaign finance reform legislation.